EPIC v. DHS - SOP 303

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Intrusive Presidential Emergency Alert Scheduled for October 3 at 2:18 EDT: The Department of Homeland Security and FCC have rescheduled a controversial test that allows the President to suspend cell phone service and communicate directly with cell phone subscribers in the United States. The test message header is labelled "Presidential Alert" and will include the following text "THIS IS A TEST of the National Wireless Emergency Alert System. No action is needed." Cell phone users cannot opt out of the test. The President has sole authority to determine when the alert will be activated. The test will use the same special tone and vibration as with alerts for Tornado Warnings and AMBER Alerts. It is unclear why the alert is designated a "Presidential Alert" or when it may be issued. In 2006, the Department of Homeland Security established a secret procedure - "SOP 303" - to suspend cell phone services. EPIC sued the agency after government officials disabled wireless service during a peaceful protest at a San Francisco metro station in 2011. (Oct. 1, 2018)

U.N. Passes Resolution Condemning Internet Shutdowns: The United Nations Human Rights Council passed a resolution to support human rights online. The resolution condemns internet shutdowns that have become more common around the world. In accordance with the Universal Declaration of Human Rights, the resolution reaffirms the U.N.'s stance that "the same rights people have offline must also be protected online." EPIC joined an international coalition of civil society organizations to reject disruption of Internet access. EPIC previously sued the Department of Homeland Security to obtain public release of the US shutdown policy following the suspension of cell phone service during a peaceful protest at a BART transit station in San Francisco. Portions of the government policy "Standard Operating Procedure 303" were eventually released to EPIC. (Jul. 5, 2016)

Today, the U.S. Supreme Court declined to review EPIC v. DHS, concerning the government's cellphone shutdown policy. EPIC had pursued the secret policyafter government officials disabled cellular service at a BART station in San Francisco during a peaceful protest. A district court in Washington, D.C. ruled in EPIC's favor when the DHS sought to withhold the policy, but the court of appeals later overturned the ruling. EPIC urged the Supreme Court to review the case to resolve a conflict between the D.C. Circuit and the Second Circuit Courts of Appeals. EPIC also pointed to competing public safety interests when cell service is disabled, but the Court declined. Despite today's order, EPIC successfully obtained a redacted version of the shutdown policy.

Today, EPIC filed a brief to the U.S. Supreme Court in a long-running campaign to obtain the government's cellphone shutdown policy. EPIC has sought the secret policy from the DHS since 2012 after government officials disabled cellular service at a BART station during a peaceful protest. In the latest filing, EPIC countered the DHS's opposition to the high court's review of the case. EPIC highlighted the government's inconsistent views on the law, and urged the Court to resolve "a direct conflict between the D.C. Circuit and the Second Circuit" Courts of Appeals. EPIC successfully obtained a redacted version of the procedure, but is fighting to uncover more of the secret document.

The US Supreme Court has granted the Solicitor General more time to respond to EPIC's charges that the government's effort to keep under wraps a controversial cellphone shutdown policy violates the law. EPIC has pursued public release of the government policy since BART subway officials shut down cellphone service during a peaceful protest in 2011. After EPIC prevailed in district court and a judge ordered release of the policy, the government appealed and a federal appeals court reversed. In the Supreme Court petition, EPIC argued that the was "contrary to the intent of Congress, this Court's precedent, and this Court's specific guidance on statutory interpretation." The government's response is now due on November 13.

The US Supreme Court has granted the Solicitor General extra time to respond to EPIC's charges that the government's effort to keep under wraps a controversial cellphone shutdown policy violates the law. EPIC has pursued public release of the government policy since BART subway officials shut down cellphone service during a peaceful protest in 2011. After EPIC prevailed in district court and a judge ordered release of the policy, the government appealed and a federal appeals court reversed. In the Supreme Court petition, EPIC argued that the was "contrary to the intent of Congress, this Court's precedent, and this Court's specific guidance on statutory interpretation." The government's response is now due on October 14.

EPIC has filed a petition to the U.S. Supreme Court in a long-running battle to obtain a secret government cellphone shutdown policy. EPIC has pursued the Department of Homeland Security policy since BART officials shut down cell phone service during a peaceful protest in 2011.. The demonstrators were protesting the police's killing of an unarmed homeless man. The appellate court's decision, wrote EPIC, "is contrary to the intent of Congress, this Court's precedent, and this Court's specific guidance on statutory interpretation." A federal judge previously ruled in EPIC's favor.

The federal court of appeals based in Washington, DC has ruled that the Department of Homeland Security may withhold from the public a secret procedure for shutting down cell phone service. EPIC pursued the DHS policy after government officials in San Francisco disabled cell phone service during a peaceful protest in 2011. EPIC sued DHS when the agency failed to release the criteria for network shutdowns. A federal judge ruled in EPIC's favor. On appeal, the D.C. Circuit held for the DHS but said that the agency might still be required to disclose some portions of the protocol.

This week EPIC President Marc Rotenberg will argue EPIC v. DHS, No. 14-5013 before the US Court of Appeals for the DC Circuit. At issue is the public release of the policy - "SOP 303" - to shut down cell phone service in the United States. EPIC filed a filed a Freedom of Information Act request for the policy after government officials shut down cell phone service during a peaceful protest at BART subway stations in San Francisco. The government first contended it could not find the document, then located the document, then claimed it was exempt from disclosure. EPIC filed suit against the agency and a federal court ruled in EPIC's favor. On appeal, the government argued the decision should be reversed. EPIC responded that the decision was correct and SOP 303 should be released. The DC Circuit will hear arguments Thursday morning. For more information, see EPIC v. DHS - SOP 303.

EPIC has filed a brief in response to an appeal by the Department of Justice in EPIC v. DHS, concerning the government policy to disrupt cellular networks. EPIC won a major FOIA victory when a federal district court ruled that the DHS could not withhold "SOP 303," a government procedure to shut down cellular phone service. EPIC sought the policy after authorities shut down cell phone service at a peaceful protest in San Francisco. The government argued it did not need to release the document to EPIC because it was a "law enforcement technique" and because it would endanger the physical safety of an individual. The federal court rejected those arguments and ordered that the document be disclosed to EPIC, pending a decision on the appeal. For more details, see EPIC v. DHS—SOP 303.

The Department of Homeland Security has released the 2013 Freedom of Information Act Report detailing the agencies attempts to comply with the federal open government law. The FOIA requires each agency to provide the numbers of requests received and processed, the time taken to respond, the outcome of each request, and other statistics. In 2013, the DHS reported a significant increase in its FOIA backlog, which rose from 28,553 unanswered requests in 2012 to 53,598 unanswered requests in 2013. Of the nine exemptions that an agency can invoke to withhold documents, DHS relied most heavily on exemption 7(C) (law enforcement records that if released would constitute an invasion of personal privacy) and 7(E) (law enforcement records that if released would disclose law enforcement techniques or procedures, which is significant because the DHS is not a law enforcement agency. DHS reported granting about 7% of requests for expedited processing. EPIC has prevailed in several FOIA lawsuits against DHS, and has also worked to reform the agency's FOIA processing practices for other requesters. For more information, see EPIC v. DHS - Body Scanner FOIA Appeal, EPIC v. DHS - Social Media Monitoring, and EPIC v. DHS - SOP 303.

Background

Standard Operating Procedure 303 codifies “a shutdown and restoration process for use by commercial and private wireless networks during national crises.”

On March 9, 2006, the National Communications System (“NCS”) approved SOP 303, however it was never released to the public. This secret document codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” In a 2006-2007 Report, the President’s National Security Telecommunications Advisory Committee (“NSTAC”) indicated that SOP 303 would be implemented under the coordination of the National Coordinating Center (“NCC”) of the NSTAC, while the decision to shut down service would be made by state Homeland Security Advisors or individuals at DHS. The report indicates that NCC will determine if a shutdown is necessary based on a “series of questions."

On July 3, 2011, a Bay Area Rapid Transit (“BART”) officer in San Francisco shot and killed a homeless man, Charles Hill. The officer alleged later that Hill had attacked him with a knife and that he had acted in self-defense. The death sparked a major protest against BART on July 11, 2011. Though the protests disrupted service at several transit stations, no one was injured. A second protest was planned one month later, but was cut short after BART officials cut off all cellular service inside four transit stations for a period of three hours. This act prevented any individual on the station platform from sending or receiving phone calls, messages, or other data.

The incident with BART has set off a renewed interest in the government’s power to shut down access to the Internet and other communications services. A 2011 Report from the White House asserted that the National Security Council and the Office of Science and Technology Policy have the legal authority to control private communications systems in the United States during times of war or other national emergencies. The Federal Communications Commission plans to implement policies governing the shutdown of communications traffic for the “purpose of ensuring public safety”. Also, on July 6, 2012, the White House approved an Executive Order seeking to ensure the continuity of government communications during a national crisis. As part of the Executive Order, DHS was granted the authority to seize private facilities, when necessary, effectively shutting down or limiting civilian communications.

EPIC's Freedom of Information Act Request and Subsequent Lawsuit

In July 2012, EPIC submitted a FOIA request to DHS for:

The full text of Standard Operating Procedure 303;

The full text of the pre-determined “series of questions” that determines if a shutdown is necessary;

Any executing protocols related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.

On July 24, 2012, DHS acknowledged receipt of EPIC’s FOIA Request. On August 21, 2012, DHS provided its final response, claiming that the agency was “unable to locate or identify any responsive records.”

On February 27, 2013, EPIC filed EPIC filed a lawsuit under the FOIA in the District Court for the District of Columbia. After filing the complaint, EPIC received a letter from the United States Coast Guard Office of the Chief Administrative Law Judge. Administrative Decision Letter. The letter indicated that “the record fails to demonstrate that the Privacy Office conducted an adequate search for responsive records” and stated that the filed would be remanded for further review.

U.S. District Court for the District of Columbia

On November 12, 2013, the District Court ruled that the DHS improperly withheld SOP 303 and granted EPIC's motion for summary judgment. In a motion for summary judgment, the government claimed it properly withheld SOP 303 under Exemptions 7(E) and 7(F). The court rejected both claims.

In order to withhold a record under Exemption 7, an agency must first satisfy the (b)(7) threshold: the record was "compiled for law enforcement purposes." Next, the agency must satisfy the requirements of one of Exemption 7's subsections. The district court found that the agency met the (b)(7) threshold because "law enforcement" includes crime prevention measures discussed in SOP 303. However, the court rejected the agency's argument that SOP 303 fell under 7(E). Exemption 7(E) permits agencies to withhold records compiled for law enforcement purposes that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." The court rejected the government's 7(E) claim because if "[7(E)] is given its natural meaning, it cannot encompass the protective measures discussed in SOP 303."

The court also rejected the government's claim under 7(F). Exemption 7(F) permits an agency to withhold records compiled for law enforcement purposes if production "could reasonably be expected to endanger the life or physical safety of any individual." The issue in this case was the scope of the term "any individual." The government claimed that the "any individual" test was satisfied because those endangered are any individuals near a bomb. The court rejected the government's argument stating that "the agency still must identify the individuals at risk with some degree of specificity."

The district court ordered DHS to produce SOP 303 to EPIC within 30 days, but stayed the order for 30 days to allow the agency to file an appeal, or to exempt the record through classification or legislation. DHS appealed the case but did not attempt to withhold the record under another FOIA exemption.

U.S. Court of Appeals for the D.C. Circuit

In June of 2014, DHS filed an appeal challenging the lower court's decision as to Exemption 7(E) and 7(F). EPIC filed a brief in response arguing that the district court's decision was correct. EPIC identified the issue on appeal as:

"Whether the Department of Homeland Security's policy for coordinating the 'disruption' of wireless communications networks during a peaceful protest is exempt from disclosure under Exemptions 7(E) or 7(F) of the Freedom of Information Act, 5 U.S.C. § 552(b) (2012)."

EPIC President Marc Rotenberg argued EPIC's case before the D.C. Circuit on December 11, 2014.

The D.C. Circuit issued an opinion on February 10, 2015. The court reversed the district court's grant of summary judgment, holding that "the [DHS] permissibly withheld much, if not all of SOP 303, because its release, as described in the Holzer declaration, could reasonably be expected to endanger individuals' lives or physical safety . . . ." The court rejected the lower court's analysis of the FOIA's context, structure, and legislative history. Instead, the D.C. Circuit read the relevant words in isolation. "Our consideration of Exemption 7(F)'s scope begins and ends with its text," wrote the court.

U.S. District Court for the District of Columbia on Remand

The D.C. Circuit sent the case back to the District Court to resolve the matter of segregability of non-exempt portions of SOP 303. The District Court ordered the DHS to submit a redacted version of SOP 303, along with a clean version of the document, for in camera review. On July 6, 2015, the agency released a new version of SOP 303 with previously unreleased information.

U.S. Supreme Court

On August 11, 2015, EPIC filed a Petition for Writ of Certiorari to the Supreme Court. In the petition, EPIC challenged the D.C. Circuit's expansive 7(F) interpretation. EPIC argues in its cert petition that the D.C. Circuit “construed Exemption 7(F) so broadly that it threatens to conceal from public access all records in the possession of any federal agency upon a mere assertion that the record concerns security procedures.” The appellate court’s decision, wrote EPIC, “is contrary to the intent of Congress, this Court’s precedent, and this Court’s specific guidance on statutory interpretation.”

On January 11, 2016, the Supreme Court denied EPIC's petition for certiorari.